Saturday, December 17, 2005

The Old Shell Game

House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations.

The provision, which has been a subject of extensive bargaining with the Bush administration, could allow evidence that would not be permitted in civilian courts to be admissable in deciding whether to hold detainees at the American military prison in Guantánamo Bay, Cuba. In recent days, the Congressional negotiators quietly eliminated an explicit ban on the use of such material in an earlier version of the legislation.

The measure is contained in the same military policy bill that includes Senator John McCain's provision to ban the cruel, inhuman and degrading treatment of detainees in American custody worldwide. ...

The juxtaposition of the seemingly contradictory measures immediately led lawyers for Guantánamo prisoners to assert that Congressional Republicans were helping to preserve the utility of coercive interrogations that senior White House officials have argued are vital to the fight against war against terror.

While the measure would allow the Guantánamo prisoners to challenge in federal court their status as enemy combatants and to appeal automatically any convictions and sentences handed down by military tribunals in excess of 10 years, it would still prevent the detainees from asking civilian courts to intervene with the administration over harsh treatment or prison conditions.

Thomas B. Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantánamo Bay, said in an interview that the new language would render the McCain restrictions unenforceable at the Cuban prison. "If McCain is one small step forward, enactment of this language would be two giant steps backwards," Mr. Wilner said.

UPDATE: What denial of legal responsibility means in practice is stories like this one:

Forty miles from where I write, a man sits. His eyes and ears are covered, his wrists and ankles manacled. He has been drugged. He may not know he is aboard a Lockheed Gulfstream jet, refuelling on the tarmac at Glasgow International Airport. He may not know where he's going.

He is going to be tortured. With beatings. With a scalpel. With a broken bottle. He will sign a confession. He will say he knows people whose names have been given to him. Some of the people he names may, some day, be on that plane. He may be on that plane himself because somebody else has, in the same position, named him.

At some moment, in the past year or two, this has been the case. It may be the case at this moment. --Ken MacLeod